F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

October 26, 2005

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 04-2059
(D. New Mexico)
(D.Ct. No. CR-03-1838 RB)

RUPERT LENNON, JR.,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before OBRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

Rupert Lennon, Jr., a commercial truck driver, was convicted by a jury of

possession with intent to distribute 100 kilograms and more of marijuana. He
appeals, arguing the Government presented insufficient evidence that he knew he
was transporting a controlled substance. Relying on United States v. Booker, -U.S.--, 125 S.Ct. 738 (2005), he also contends his sentence should be vacated and
his case remanded for resentencing because he was sentenced under the
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*

mandatory federal sentencing guideline scheme. Lennon further claims the

judgment erroneously indicates he pled guilty. Exercising jurisdiction under 28
U.S.C. 1291 and 18 U.S.C. 3742(a), we affirm Lennons conviction and
sentence but remand this matter to the district court to correct the judgment.
I. Background
Lennon has been a commercial truck driver since 1998. In 2002, he started
his own business, Lennon & Sons Trucking, LLC, based in Tamarac, Florida.
Lennon drives a refrigerated tractor-trailer rig and travels throughout the fortyeight states and Canada. Lennon obtains business from various brokers, who
book his loads. When booking a load, he deals solely with the broker, not the
customer.
On Monday morning, June 23, 2003, Lennon was in Phoenix, Arizona,
when he received a call from a broker informing him that a load of mangoes
needed to be picked up in Nogales, Arizona. Lennon agreed to haul the mangoes.
At approximately 1:00 PM, Lennon arrived at Farmers Best in Nogales, where 20
pallets containing a total of 3,840 boxes of mangoes were loaded into Lennons
truck. While Lennon did not participate in the loading, he did ensure that none of
the boxes were damaged. The bill of lading states the mangoes were loaded at
1:20 PM, were to be maintained at a temperature of forty-eight degrees and were
to be transported to Wakefern Food Corporation in Elizabeth, New Jersey.
-2-

Thereafter, Lennon drove north to a truck station in Rio Rico, Arizona, to

weigh his truck. It took him approximately an hour to shift the weight in his
truck to comply with the applicable state weight regulations. Lennon then drove
to a TTT truck stop in Tucson, Arizona, arriving at approximately 5:00 PM. On
the way to Tucson, he received a call from another broker who asked Lennon
whether he could transport 3-4 pallets weighing over 1,000 pounds. Lennon
informed the broker he could only transport 500-600 pounds because he was near
the maximum allowable weight. The broker informed him he would talk to the
customer to see if it would accommodate Lennons weight restrictions.
Lennon waited at the truck stop for the brokers call. At about 9:00 PM,
the broker called and informed Lennon the customer was willing to reduce the
load. Lennon agreed to the transaction and the broker provided him with
directions. Lennon got lost. Eventually, an individual met Lennon and led him to
a loading dock. 1 Another man was waiting there with a forklift. This man, who
Lennon testified was definitely drunk and talking a lot of garbage, had nine
boxes on a pallet. (R. Vol. III at 154, 181.) Pursuant to Lennons direction, the
man first removed two pallets of mangoes from Lennons truck, added the pallet
with the nine boxes and then replaced the two pallets of mangoes. Lennon
testified he told the man to load the truck in this manner so the trailers doors
1

The individual was driving a minivan with his two children in the backseat.
-3-

would support the boxes of mangoes, which were top heavy. The nine boxes were
sealed together and labeled. The label indicated the boxes were being shipped by
AM Frozen Food Specialty, Inc. in Tucson to Omega Produce Co., Lehigh
Valley Produce Market in Lehigh Valley, Pennsylvania. (Appellants
Addendum, Ex. 8.) According to the bill of lading, which Lennon signed, the
boxes contained fronzen [sic] exotic Japanese turtle tempura. (Id. at Ex. 12.)
Although Lennon counted the boxes, he apparently did not open them, stating it
was his practice and industry custom not to open his cargo. 2 He testified he was
going to be paid $1,200 to transport the tempura. Lieutenant Charles Cox (Lt.
Cox) with the New Mexico Department of Public Safety, Motor Transportation
Division, and a former truck driver, testified this amount was quite expensive.
(R. Vol. III at 206.)
Once the nine boxes were loaded, Lennon locked the trailer, sealed its
doors with a plastic seal 3 and drove back to the TTT truck stop in Tucson to
weigh his truck. At approximately 10:30 PM, he left Tucson and drove into New
Mexico. He arrived at a weigh station in Lordsburg, New Mexico, between 1The bill of lading stated there were fifteen boxes of Japanese turtle tempura.
Lennon amended it to reflect that there were only nine boxes.
2

Lennon testified that a customer may request that a load be sealed. If the load is
sealed, no one is allowed to enter the trailer. If the seal is broken when the load arrives at
its destination, the driver eat[s] the load, i.e., he has to find another customer to take the
load. (R. Vol. III at 136.) Lennon further stated he usually seals his load to demonstrate
to the customer that he is a responsible driver.
3

-4-

2:00 AM, where he slept. The next morning, he refueled, ate and completed his
logbook for the previous day. 4 He did not fill it out accurately. The logbook
shows Lennon was driving to Tucson when in fact he was weighing his truck in
Rio Rico. It also fails to indicate he picked up the second load. Moreover, the
logbook states he arrived in Las Cruces at 11:00 PM, when in fact he had left
Tucson at 10:30 PM and arrived in Lordsburg between 1-2:00 AM.
After completing his logbook, Lennon began driving east until he arrived at
an inspection checkpoint near Alamogordo, New Mexico. At the checkpoint, he
was greeted by Agent Ricardo Sanchez, Jr., of the United States Border Patrol.
During this initial encounter, Agent Sanchez asked him about his citizenship,
what he was hauling, where he was coming from and where he was going.
Lennon, who is a legal resident but not a United States citizen, 5 stated he was a
United States citizen and was hauling mangoes from Nogales, Arizona, to New
Jersey. 6 Lennon provided Agent Sanchez with the bill of lading for the mango
load. Agent Sanchez testified Lennon became increasingly nervous, kind of

Lt. Cox testified federal regulations required truck drivers to maintain a daily log.
The daily log requires the driver to record when he is driving, when he is sleeping, when
he is off duty, and when he is on duty, but not driving.
4

Lennon is a citizen of Jamaica. He has been in the United States since 1987.

Lennon testified he told Agent Sanchez he was not a United States citizen and
would not have lied because he knew Agent Sanchez had the resources to verify this
information.
6

-5-

shaking when he was handing me the [bill of lading], began to stutter a little bit
and [] began speaking very rapidly. 7 (Id. at 25.) Agent Sanchez then asked
Lennon if the load was locked or sealed; Lennon responded it was locked and
sealed. Agent Sanchez testified this raised his suspicions because in his
experience, trucks hauling produce are normally not sealed. The bill of lading did
not indicate that the load was sealed.
Agent Sanchez then obtained Lennons permission to search the truck and
to perform a dog sniff on the vehicle. The dog alerted to the rear of the trailer.
Agent Sanchez informed Lennon that agents would be inspecting the inside of the
trailer and directed him to unlock the trailer. Agent Sanchez testified Lennon
appeared puzzled and confused but proceeded to unlock the trailer. (Id. at 30.)
Agent Sanchez noticed Lennons hand was shaking and it took him awhile to get
the key inside the lock to unlock it. (Id. at 31.) Lennon also broke the plastic
seal with his hand, retained the seal and stepped back from the trailer.
Agent Sanchez immediately noticed the two pallets of mangoes. He then
observed several boxes wrapped in cellophane, which did not match the rest of
the load, behind the mangoes. Agent Sanchez, with the assistance of Agent
Humberto Valeriano, inspected the boxes. The boxes contained large bundles

Lennon testified he used to stutter when he was young and attended speech
therapy. He stated he still stutters occasionally but has learned to control it.
7

-6-

wrapped in cellophane. The agents asked Lennon what the bundles were; Lennon
stated he did not know. One of the bundles was opened and the substance inside
field-tested positive for marijuana. The agents arrested Lennon.
Thereafter, Agents Sanchez, Valeriano and Hugo Gonzalez conducted a
search of Lennons truck. They found Lennons logbook and the bill of lading for
the second load. Sometime later, Agent Sanchez noticed that the plastic seal that
had been removed from the trailers doors was missing. Agent Gonzalez searched
for the seal, discovering it on the other side of a barbed wire fence, approximately
fifteen feet behind where Lennon had been standing during the search. 8
A total of 361 pounds (147.38 kilograms) of marijuana was seized from
Lennons truck. Lt. Cox estimated its value at $360,000. Upon further
investigation, agents learned the company to which the second load was addressed
(Omega Produce) did not exist. They also discovered the address listed for the
shipper (AM Frozen Food Speciality, Lehigh Valley Produce Market) actually
belonged to Merit Foods, LLC, d/b/a Merit Marketing, LLC.
On September 17, 2003, Lennon was indicted for possession with intent to
distribute 100 kilograms and more of marijuana in violation of 21 U.S.C.
841(a)(1), (b)(1)(B) and 18 U.S.C. 2. Lennon proceeded to trial. At trial,
Lennon testified he did not throw the seal over the fence. He stated it fell from
his hand but he did not want to bend down and pick it up out of fear of what the agents
might think or do to him.
8

-7-

Lennon testified, essentially denying any knowledge that the nine boxes contained
marijuana. The jury found Lennon guilty. 9 On March 9, 2004, Lennon was
sentenced to seventy months imprisonment. This timely appeal followed.
II. Discussion
On appeal, Lennon attacks both his conviction and sentence, arguing (1) the
Government presented insufficient evidence at trial demonstrating he knew the
nine boxes he was hauling contained marijuana, (2) he is entitled to resentencing
because the district court sentenced him pursuant to the mandatory guideline
scheme and (3) the judgment erroneously indicates he entered a plea of guilty.
We address each argument in turn.
A. Sufficiency of the Evidence
Lennon argues the Government presented insufficient evidence
demonstrating he knew the second load contained a controlled substance. He
asserts that in cases involving commercial truck drivers, courts have identified
several factors that can support a plausible inference of knowledge, specifically:
(1) whether the driver took an unusual or indirect route; (2) whether the truck or
cargo emitted an odor either of drugs or a substance commonly used to mask the

After the Government rested its case, Lennon moved for a judgment of acquittal,
which the district court denied. After trial, Lennon renewed that motion and filed a
motion for a new trial based on insufficiency of the evidence. The district court denied
both motions in a written order.
9

-8-

odor of drugs; and (3) whether the driver made inconsistent statements concerning
his destination or place of origin. Lennon contends no such evidence was
presented in this case. Indeed, he contends he took the most direct, logical route
from Tucson to New Jersey and did not avoid the checkpoint. Neither the trailer
nor the nine boxes emitted any odor and he was honest and consistent with the
agents concerning his point of origin and destination.
Lennon also argues the Governments evidence, whether considered
separately or collectively, raised, at most, a mere suspicion of knowledge, which
is insufficient. He alleges that although his logbook was inaccurate, the
Governments own expert witness, Lt. Cox, testified truck drivers often fail to
maintain accurate logs. He also claims Agent Sanchezs testimony that he lied to
the agent concerning his citizenship does not demonstrate he knew about the
marijuana. He states a legal resident, like himself, might well misinterpret a
border patrol agents question concerning whether one is a citizen as whether one
is in the United States legally. Lennon further asserts that any nervousness he
exhibited at having his truck searched is insignificant. He states it is common for
an individual being confronted by three armed agents to exhibit signs of
nervousness. He also points out that Agent Sanchezs testimony that he appeared
puzzled and confused is consistent with the reaction an innocent truck driver
would have under the same circumstances. Additionally, because none of the
-9-

agents knew him, Lennon asserts the agents could not know whether he was
acting nervous or whether he was acting in his normal manner.
As to the presence of the plastic seal on the other side of the fence, Lennon
argues the jury could not reasonably infer from the evidence that he threw it over
the fence because he was in the presence of several agents and none of them saw
him throw the seal over the fence. He also contends that because the marijuana
was concealed from sight, the mere fact he was the owner and sole occupant of
the truck is insufficient to establish his knowledge of the marijuana. Lastly,
Lennon asserts the fact that the forklift driver who loaded the pallet of nine boxes
onto his truck appeared inebriated does not show that he knew the boxes
contained marijuana. He states the boxes were loaded without incident and the
forklift drivers inebriation does not make it any more or less likely that the boxes
contained marijuana.
We review de novo whether the prosecution presented sufficient evidence
to support a conviction. United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.
2002). In conducting this review . . . we ask whether, taking the evidence--both
direct and circumstantial, together with the reasonable inferences to be drawn
therefrom--in the light most favorable to the government, a reasonable jury could
find the defendant guilty beyond a reasonable doubt. Id. (quotations omitted).
We will not evaluate witness credibility or re-weigh the evidence. Id. We will
-10-

only reverse a conviction if no rational trier of fact could have reached the
disputed verdict. United States v. Wilson, 182 F.3d 737, 742 (10th Cir. 1999).
The evidence necessary to support a verdict need not conclusively exclude every
other reasonable hypothesis and need not negate all possibilities except guilt.
Instead, the evidence only has to reasonably support the jurys finding of guilt
beyond a reasonable doubt. Id. (citation and quotations omitted). Lennons
divide and conquer 10 argument is contrary. The jury properly considers all of
the evidence and weighs its cumulative effect. Our review respects the jurys
reasonable fact-finding.
The jury has the discretion to resolve all conflicting testimony, weigh the
evidence, and draw inferences from the basic facts to the ultimate facts. United
States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998). However, we
may not uphold a conviction obtained by piling inference upon inference. Id.
An inference is reasonable only if the conclusion flows from logical and
probabilistic reasoning. Id. The evidence supporting the conviction must be
substantial and do more than raise a suspicion of guilt. Id.
To establish a violation of 21 U.S.C. 841(a)(1), the Government must
prove [the defendant] (1) possessed a controlled substance; (2) knew [he]
Compare United States v. Arvizu, 534 U.S. 266, 274 (2002) (rejecting divide
and conquer approach to determining whether reasonable suspicion exists to perform
investigatory stop of defendants vehicle).
10

-11-

possessed a controlled substance; and (3) intended to distribute the controlled

substance. United States v. Castorena-Jaime, 285 F.3d 916, 933 (10th Cir.
2002). The only contested issue at trial was whether Lennon knew the second
load contained a controlled substance. 11 Like many cases where a defendants
mental state is at issue, the Government did not provide direct evidence of
Lennons knowledge, relying instead on circumstantial evidence. United States v.
Ortiz-Ortiz, 57 F.3d 892, 895 (10th Cir. 1995) ([A] criminal conviction may be
sustained on wholly circumstantial evidence.). Nevertheless, the evidence,
considered as a whole and in the light most favorable to the Government, was
sufficient to prove Lennon knew he was transporting an illegal drug.

The Government was not required to prove that Lennon knew he was
transporting marijuana, only that he knew he was hauling a controlled substance. See
United States v. Gonzalez, 700 F.2d 196, 200 (5th Cir. 1983) ([T]he government is not
required to prove that a defendant knew the exact nature of the substance with which he
was dealing; it is sufficient that he was aware that he possessed some controlled
substance.); United States v. Jewell, 532 F.2d 697, 698 (9th Cir. 1976) (en banc) (The
government is not required to prove that the defendant actually knew the exact nature of
the substance with which he was dealing . . . . [A] defendant who has knowledge that he
possesses a controlled substance may have the state of mind necessary for conviction
even if he does not know which controlled substance he possesses.). Consistently, the
jury was instructed that in order for Lennon to be guilty of possession with intent to
distribute, it must find the Government proved beyond a reasonable doubt that (1) Lennon
knowingly possessed a controlled substance, (2) the controlled substance was in fact
marijuana, (3) Lennon possessed the substance with intent to distribute it, and (4) the
quantity of the substance was more than 100 kilograms. (R. Vol. I, Doc. 36, Instruction
No. 12.) It was undisputed that marijuana was discovered in Lennons tractor-trailer.
Therefore, the main issue presented to the jury was whether Lennon knew he was hauling
a controlled substance.
11

-12-

Lennon had sole possession of and control over the truck containing the
marijuana. [I]t is permissible to infer that the driver of a vehicle has knowledge
of the contraband within it. United States v. Cota-Meza, 367 F.3d 1218, 1224
(10th Cir.), cert. denied, 125 S.Ct. 276 (2004). Lennons logbook was inaccurate;
in particular, he conveniently failed to indicate he picked up the second load.
Although Lt. Cox testified that commercial truck drivers often fudge their
logbooks (R. Vol. III at 101), it is difficult to understand how Lennon could fail
to record such a significant event as the pick up of a load, especially when he
completed the logbook the next morning. He also failed to provide Agent
Sanchez the bill of lading for the second load. Further, Lennon directed the
loading of the nine boxes in such a way that the boxes would be hidden from view
if the trailers doors were opened. From these facts, the jury could have
reasonably inferred Lennon knew the second load was illegal, did not want any
record of it and did not want anyone discovering it.
The jury also heard evidence that Lennon was paid over $1,200 for hauling
nine boxes, sealed his truck even though it was uncommon to do so for perishable
items and was hauling a frozen product with an unfrozen one. 12 These unusual
circumstances support a reasonable inference that Lennon knew he was
Lt. Cox testified it is uncommon for truck drivers to transport a frozen product
with a product like mangoes, because mangoes get mushy if they are frozen and then
thawed. (R. Vol. III at 205.)
12

-13-

transporting an illegal substance. Although Lennon alleges he did not know the
second load was to remain frozen, the bill of lading indicated the product was
frozen and it is logical to assume the product was to remain frozen.
Additionally, the jury heard evidence that Lennon had lied to Agent
Sanchez concerning his citizenship, appeared nervous upon unlocking the trailer,
lost the plastic seal, and was hauling over $360,000 worth of marijuana.
Although most citizens display signs of nervousness when confronted by officers
asking potentially incriminating questions, United States v. Fernandez, 18 F.3d
874, 879 (10th Cir. 1994), Lennons nervousness, considered with the other
evidence, could allow a reasonable jury to infer Lennon knew he was hauling a
controlled substance and feared its discovery. The marijuanas value also
supports an inference of knowledge as normally a person seeking to distribute
drugs would not entrust such a large sum to just anyone. See Cota-Meza, 367
F.3d at 1224 (This court has repeatedly recognized that the value of drugs can
support an inference of knowledge.).
Considering the evidence as a whole, the Government presented sufficient
evidence supporting the jurys verdict. While the evidence presented could have
been consistent with either innocence or guilt, we have rejected the suggestion
that we should evaluate the evidence to determine whether some hypothesis
could be designed which is consistent with a finding of innocence. United States
-14-

v. Hooks, 780 F.2d 1526, 1531 (10th Cir. 1986). Moreover, although Lennon
testified he did not know there was an illegal substance in his trailer, it was the
jurys duty to weigh his credibility and the jury was not required to (and
obviously did not) believe him. 13
B. Booker
Relying on Booker, Lennon argues that because he was sentenced under the
unconstitutionally mandatory federal sentencing guideline scheme, his sentence
should be vacated and this matter should be remanded for resentencing. In
Booker, the Supreme Court extended its holding in Blakely 14 to the federal
sentencing guidelines, holding that the Sixth Amendment requires [a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty or a jury
verdict [to] be admitted by the defendant or proved to a jury beyond a reasonable
doubt. 125 S.Ct. at 755-56. To remedy the constitutional infirmity of the
guidelines, Booker invalidated their mandatory nature, requiring the district court
Lennon relies on State v. Pigford, 892 So. 2d 724 (La. App.), cert. granted, 902
So. 2d 1034 (La. 2005). There, the Louisiana Court of Appeals held that the evidence
was insufficient to show that a commercial truck driver constructively possessed a fiftytwo pound package of marijuana that was concealed in the cargo of grapes the trucker
was hauling. This case is not binding on us. Additionally, it is contrary to our case law.
Under Louisiana law, in order for circumstantial evidence to be sufficient to convict, it
must exclude every reasonable hypothesis of innocence. Id. at 729.
13

14

See Blakely v. Washington, 542 U.S. 296 (2004).

-15-

to consult them in an advisory fashion. Id. at 756-57 (severing and excising 18

U.S.C. 3553(b)(1), 3742(e)).
Lennon did not raise either Blakely or Booker in the district court.
Therefore, we review for plain error. United States v. Gonzalez-Huerta, 403 F.3d
727, 730 (10th Cir. 2005) (en banc), petition for cert. filed, - U.S.L.W.-- (U.S.
Sept. 6, 2005) (No. 05-6407). To establish plain error, Lennon must demonstrate
there is (1) error, (2) that is plain and (3) the error affects his substantial rights.
United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005); Gonzalez-Huerta,
403 F.3d at 732. If these three prongs are met, we may exercise our discretion to
correct the error if Lennon establishes the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings, i.e. the fourth prong of
plain error review. Dazey, 403 F.3d at 1174. See Gonzalez-Huerta, 403 F.3d at
736-37.
In this case, no judicial fact-finding occurred at sentencing. At trial, the
parties stipulated that the net weight of the marijuana seized from the semi-truck
[Lennon] was driving on June 24, 2003, when he was stopped at the U.S. Border
Patrol checkpoint . . . was 100 kilograms and more . . . . (R. Vol. III at 114;
Appellants Addendum, Ex. 21 at 1.) Additionally, the verdict form required the
jury to determine whether Lennon was guilty of possession with intent to
distribute 100 kilograms and more of Marijuana . . . . (R. Vol. I, Doc. 37.)
-16-

Because a base offense level of 26 applies to the possession with intent to

distribute [a]t least 100 KG but less than 400 KG of Mari[j]uana . . ., see USSG
2D1.1(c)(7) (2003), Lennons sentence was based solely on the jurys verdict.
Therefore, no Sixth Amendment violation occurred at sentencing. However,
because Lennon was sentenced pursuant to the mandatory guidelines, we are
presented with non-constitutional Booker error. Gonzalez-Huerta, 403 F.3d at
731-32 (holding non-constitutional Booker error occurs when the district court
applies the guidelines in a mandatory rather than advisory fashion, even though
the resulting sentence was calculated based solely upon facts admitted by the
defendant or found by a jury).
Applying the plain error analysis, it is clear the first two prongs of the plain
error standard have been metthere was error and the error was plain. United
States v. Clifton, 406 F.3d 1173, 1181 (10th Cir. 2005) (Non-constitutional and
constitutional Booker errors satisfy the first two prongs of the plain-error test.).
Moving to the third prong of plain error review, Lennon must show that the
district courts erroneous mandatory application of the guidelines affected his
substantial rights, that is, that it affected the outcome of the district court
proceedings. Dazey, 403 F.3d at 1175 (quotations omitted). However, we need
not decide whether Lennon has satisfied the third prong of the plain error
standard because, even if he has, we conclude he has not met the fourth prong.
-17-

Gonzalez-Huerta, 403 F.3d at 736.

Under the fourth prong of plain-error review, a court may exercise its
discretion to notice a forfeited error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. If non-constitutional
Booker error is involved, as in this case, the standard for satisfying the fourth
prong is demandingthe defendant must show that the error is particularly
egregious and that our failure to notice it would result in a miscarriage of
justice. Dazey, 403 F.3d at 1178 (quotations omitted); Gonzalez-Huerta, 403
F.3d at 736-37. We have recognized that in most cases involving nonconstitutional Booker error the defendant will be unable to satisfy the fourth
prong. United States v. Trujillo-Terrazas, 405 F.3d 814, 820-21 (10th Cir. 2005).
This case is no exception.
Lennon received a sentence within the national norm as established by the
guidelines and there is no evidence supporting a lower sentence. See GonzalezHuerta, 403 F.3d at 738-39 (considering in fourth prong analysis whether the
defendant received a sentence within the guidelines/national norm and whether
the record supported a lower sentence). Although Lennon was sentenced at the
bottom of the guideline range, the only evidence potentially supporting a lower
sentence was the fact that Lennon had young children. At sentencing, the district
court heard from Lennon and several witnesses who expressed their concern over
-18-

the impact Lennons absence would have on his children. In imposing sentence,
the court stated:
I heard what your teacher friend said when she spoke a
moment ago. She sees this every day, and she sees families torn
aport [sic] by bad decisions. And most of these decisions, it seems, .
. . resolve [sic] around drugs. And what we see and what you know
from where you are every day and what I know from where I am
every day, is that the decisions of one are visited -- the consequences
of those bad decisions are visited on the young. . . . And . . . this
notion of the children having to endure a sentence thats imposed this
morning, every bit as difficult as that which you must bear, is
heartrending. I appreciate that, and Im sorry for it, and I wish it
werent so.
Ive been asked to exercise clemency, to be as merciful as I
can be. I, under these circumstances, dont have the discretion. We
talked about the Sentencing Guidelines a little bit ago in another
context. United States Congress has determined a range of sentences
that I have to give. Im going to sentence at the low end of that
range, which is the discretion that I have, but Im not in a position to
do other than that in terms of the actual length of the sentence
imposed.
....
Ill be glad to make the recommendation that you be housed in
Florida . . . . And I take no delight in what I have to do now.
(R. Vol. V at 7-8, 10.)
In United States v. Nguyen, we were confronted with similar comments by
the district court. 413 F.3d 1170 (10th Cir. 2005). There, in imposing sentence,
the judge noted the sentencing range was very high but stated the case was
governed by the federal guideline sentencing system, under which I have very
-19-

little discretion with respect to the sentence of imprisonment . . . . [T]he only

leniency or mercy that I could impose would be to impose a sentence at the very
bottom of the guideline range, which I will do. Id. at 1184 (emphasis in original
omitted). On appeal, we stated that while such a statement suggested the judge
was sympathetic toward the defendant, such a general expression of leniency or
mercy alone is insufficient to satisfy plain error under the fourth prong. Id.
After distinguishing cases where the district court explicitly states it would
impose a lower sentence if it had more discretion, we held the judges statement
was no more than an acknowledgment of his desire to exercise discretion within
a Guideline range generally appropriate for the crime committed; it is not a clear
expression of a desire or willingness to depart downward. Id. We also noted
that the judges statement was not linked to any of the 18 U.S.C. 3553(a)
factors. Id. at 1184-85. Thus, there was no indication that the court would
impose a lower sentence if it had the discretion to do so. See also United States
v. Sierra-Castillo, 405 F.3d 932, 942 (10th Cir. 2005) (finding that comments of
sympathy towards a defendants circumstances do not in themselves demonstrate
that the sentence implicates the kind of fundamental fairness issues necessary to
satisfy the fourth plain-error prong); Trujillo-Terrazas, 405 F.3d at 821 (Even if
a defendant can demonstrate that the district court felt particular sympathy for
him, and might impose a lesser sentence on remand, failing to correct [non-20-

constitutional Booker error] would not impugn the fairness, integrity, and public
reputation of judicial proceedings. Indeed, a remand might do quite the opposite
because another defendant convicted of an identical crime under identical
circumstances could receive a different sentence from a less sympathetic judge.).
The same reasoning applies in this case. While the judges comments
suggest he was sympathetic to Lennons predicament, there is nothing in the
record to indicate he would have been inclined to impose a lower sentence, even
had he realized he had the discretion to do so. Indeed, it appears the judges
comments were directed more toward Lennons children than to Lennon himself.
Based on the above, Lennon fails to satisfy the fourth prong of plain error
review; thus, we decline to exercise our discretion to correct the error.
C. Judgment Form
Lennon correctly states that the judgment erroneously indicates he entered a
plea of guilty. This error is clerical in nature because it is clear the district court
knew Lennon pled not guilty and proceeded to trial as the sentencing judge was
the same judge who presided over Lennons trial. Rule 36 of the Federal Rules of
Criminal Procedure provides: After giving any notice it considers appropriate,
the court may at any time correct a clerical error in a judgment . . . . While

-21-

Lennon could have moved to amend the judgment in the district court, 15 we will
remand this matter for the limited purpose of allowing the judgment to be
amended. United States v. Morales, 108 F.3d 1213, 1225 (10th Cir. 1997)
(Ordinarily, we . . . remand a case involving clerical mistake to the district court
for correction.).
III. Conclusion
We AFFIRM Lennons conviction and sentence but REMAND this matter
to the district court to correct the judgment to reflect that Lennon pled not guilty
and proceeded to trial.

Entered by the Court:

Terrence L. OBrien
United States Circuit Judge

The filing of this appeal did not divest the district court of jurisdiction to amend
the judgment as Rule 36 permits such amendments at any time. United States v. Sasser,
974 F.2d 1544, 1561-62 (10th Cir. 1992) (holding district court had jurisdiction to amend
clerical error in judgment after the filing of the notice of appeal).
15

-22-